Il percorso tortuoso del diritto del lavoro tra emancipazione dal diritto civile e ritorno al diritto civile

The essay moves from the question of whether the contractual inequality between employee and employer, which justifies the limitation of individual autonomy in negotiations by means of mandatory rules, must be considered irreversible, or not. On this issue, the Author stresses that, on the one hand, the typical dysfunctions of the job market change their nature and their proportions with the times; on the other hand, similar dysfunctions are manifested in other markets, rendering necessary mandatory rules and the adoption of other techniques to protect the weak party, as is done in other fields. He also observes, however, that the ever-changing structure of the labour market itself, as well as that of other markets, impedes consideration of a constitutional obligation to maintain the current protection system. Moreover, it imposes a demand to consider, as a constitutional constraint, the adaptation of the protection system in relation to changing market dysfunctions. In the second part of the essay, the evolution of the rapport between labour law and civil law in the twentieth century is discussed. In particular the Author stresses the oscillation of “living” Italian labour law between contractualism and non-contractualism; between the concept of collective bargaining as the prerogative of a private association and its conception as the function of a public body; between the affirmation and the negation of the existence of an obligation of enterprises to pursue a social interest potentially at odds with the entrepreneur’s interest. In the third and last part of the essay the A. emphasizes that only in the abstract has the labour law doctrine been able to resolve these three issues, while the reality is that problems are still unresolved; in “living” labour law, tendencies coherent with one or the other concepts are still observable.

Il saggio studia il processo di emancipazione progressiva del diritto del lavoro dal diritto civile nel corso dell'ultimo secolo, nonché le tendenze in direzione di un ritorno alla convergenza tra l'una e l'altra branca del diritto privato, anche alla luce delle teorie dominanti circa la giustificazione razionale della specialità della disciplina lavoristica rispetto al diritto comune dei contratti